Tuesday, May 10, 2011

Adam Serwer on the legality of killing OBL

unless he was surrendering—the White House says he wasn't—there's no legal reason why the Navy SEAL team shouldn't have assassinated him. Military law is a bit different than federal law when it comes to killing, and things get even more lax when it comes to the laws governing the CIA, which had authority over the Bin Laden mission. By all accounts, shooting him was legitimate. But was it justified?

That's a harder question. We know Bin Laden was 54, diabetic, with an enlarged heart and kidney stones. In other words, without a weapon, he was probably no match for a physically elite, well-trained team of soldiers armed to the teeth. And though the heat of battle can make people do rash things, the commandos at least had the time, resources, and wherewithal to handcuff people in the compound in zip ties. If others were cuffed, why not Bin Laden?

These come in the context of his asking what is to me actually a bigger question-- since when are liberals cool with shooting people in the face, without due process? Jefferson is asking, I take it, based on the simple logic that principles are principles always and that liberalism and democracy require that all humans, even the very worst of them, be afforded certain rights. Whatever flaws of the Nuremberg trials, they are an essential act of justice for Western civilization, because they established that the worst human beings we can imagine are nonetheless worthy of human rights.

Adam Serwer is attempting to provide answers, or at least, answers to the questions of legality. It's important to point out the context of all this, which is liberals scolding those of us who ask questions about the bin Laden killing for being tiresome, radical, and illegitimate. I can't tell you how many mainstream liberals have voiced exasperation or anger at the very presence of these questions, saying things such as "this is why I hate being a liberal" and "I'm so sick of the left"-- sentiments well-known to those of us who had the sense to oppose the Iraq invasion prior to it happening. This is in part what Cord Jefferson was reacting to, not merely the justification of the action but the glee with which it was attended and the rhetoric of absolutism that questions were answered with. And this is what Glenn Greenwald is referring to in today's column, when he mentions accusations of radicalism or terrorist sympathy. One only needs to check his Twitter feed to see a daily barrage of insults and accusations against him for continuing to ask questions.

Part of the difficulty with this debate is that everyone (well, everyone who wants to have a debate at all) is interested in questions of legality and moral justification, but in different mixtures. For me, as I've said, legal questions are very important, but subject to distortion by the fact that American power makes ex post facto legal justifications inevitable. So there's this very interesting piece from Wired, which ends with the rather depressing admission that the point of all of this is to eventually change the laws-- in order to inoculate our military from criticism prevent illegality in the future. So there's a sense in which people like Greenwald and Serwer, et al, are talking past each other, but I think it's still a conversation worth having.

I'm afraid that there's a central confusion in Serwer's piece, and many like it: a glaring inconsistency regarding the question of whether bin Laden was a criminal or a enemy combatant. Here's Serwer on the crux of the question of legality:

Furthermore, even putting aside the 9/11 attacks, bin Laden was the leader of an organization that was executing attacks on American troops in Afghanistan. To argue that he was not a legitimate military target based on that alone is to propose that American troops are prohibited from defending themselves from those who are attacking them in a war zone. One needn't believe that the powers of the AUMF extend to Mogadishu or Sanaa to recognize its legitimacy in the context of the raid in Abbottabad.

In short, there is no need for a "bin Laden exception" owing to his particular evil, because he was already a lawful military target.

The emphasis on his status as a military target is importance because it changes the question of due process. Enemy soldiers and officers are subject to different legal rules than criminals, although interestingly, for positions like Serwer's, soldier's rights are in many ways more protective than criminal rights. So far, so good. And yet despite the fact that Serwer is adamant that bin Laden was a military target, duly authorized by Congress, he is also sure that Al Qaeda is not a military organization that deserves the legal treatment as such. Check out this Tweet: "because AQ is a criminal organization not a state or entity acting in self defense." I think you'll forgive me for being confused. If Osama is a military target, and the head of Al Qaeda, what sense does it make to say that Al Qaeda is emphatically a criminal organization?

Well, if I follow the strands of the Twitter argument correctly, for Serwer it's necessary to keep this kind of criminal/military fusion because he at once wants to assert that bin Laden was a military target not subject to conventional due process and at the same time assert that Al Qaeda has no equivalent right to, say, kill President Obama. As this discrepancy shows, it's a difficult line to walk with any argumentative consistency. So Serwer is the latest who has taken to creating a "heads we win/tails you lose" fusion for terrorists where they deserve neither the treatment of enemy soldiers, protected by the Geneva convention and a large body of international law, nor the treatment of criminals, protected by domestic laws of due process. There is a long tradition in human history of those engaged in war to attempt to designate subhuman status for certain combatants, which is entirely the point of the meticulous erasure of rights of the accused for suspected terrorists. Denying habeas corpus, the right to counsel, the right to fair and speedy trials, the right to public openness and accountability in justice-- all of this is part of a larger project of rendering terrorism suspects inaccessible to elementary human rights. I'm afraid that Serwer is now contributing to that project.

There are many tensions here. (I would be very curious to know if Serwer thinks it would have been appropriate for soldiers to have put bullets into the face of Timothy McVeigh.) One of the weird things about the assumed radicalism of questioning the bin Laden killing is that opposition to the death penalty exists and is considered a mainstream opinion. Yet consider that those opposed to the death penalty are asking for something actually more radical than those criticizing the handling of the bin Laden raid. After all, people opposed to the death penalty (like me) think that it is wrong for the government to kill people even after a full and fair trial with due process and rights of the accused. Bin Laden was denied such due process, and more to the point, we were denied it, a trial always being equally about the public's right to rigorous examination of the facts. But somehow opposition to the death penalty is a mainstream position and criticizing the bin Laden raid is not.

Like I said, legal questions are complicated, and I'm entirely unqualified to answer them. The broader questions of what this all means for our country and the left in particular, I think, have relevance as well. There's a telling moment at the end of Serwer's piece, where he writes, "Does anyone other than pacifists and those who revere violence for its own sake fail to see the importance of such distinctions?" I suppose that Serwer is not drawing a moral equivalence between pacifists and "those who revere violence for its own sake" here. But he certainly is marginalizing both equally. And this gets to the heart of one of my great frustrations with our politics. Is Serwer interested in pursuing the path of peace? I'm sure he is, and I'm sure some would groan that I even ask. And yet Serwer, like many liberals, finds it fit to treat pacifism as more disqualifying than neoconservatism or other aggressive ideologies. The question is whether the American left can ever really support the project of peace when it consistently expels those who work for it most ardently from the ranks of the serious, for fear of being perceived as too radical by the public.

After, I'm sorry to say, Serwer says, "However, those arguing that the killing of bin Laden is illegal because 'violence is always wrong' are on no firmer ground than those who support the use of torture as legal on the basis that it would lead to lives being saved," explicitly equating the morality of pacifism with the morality of support for torture. Which, from my biased and limited vantage, is just categorically wrong.

All of this has consequences. It's all part of the same old dynamic: the right respects and honors its fringe, invites it to the table, and attends, at least in rhetoric, to its concerns. The left forever seeks Sister Soulja moments to excise its fringe from polite conversation, in the vain hope that this will somehow compel the people who despise us the most to take us more seriously. And then we wonder why the center resides where it does.

12 comments:

Direct and immediate external threat to ourselves or our allies, including retaliation (and potentially short-term occupation) against countries that launched non-invasion attacks. Initial invasion of Afghanistan qualifies. Almost no other recent military actions do.

I think that you make a really good point about the "heads we win/tails you lose" mentality. We want to have our actions unfettered (war) and keep terrorist actions illigitimate (crime). Treating terrorism as war in any consistent fashion give us more leeway in the legitimate use of violence, but it does the same for terrorists. Under the war paradigm, any attacks on soldiers (or other combatants, like CIA paramilitaries or the President) would be legitimate acts of war - even when the incidental killing of civilians occurs (under the doctrine of double effect).

I'd prefer using a criminal justice frame to counterterrorism efforts than a military frame. However, I can buy the legality if not the wisdom of such a frame. Of course, an implication of such a frame is that the attack on the USS Cole was an act of war and not a terrorist action.

In any event, while I don't agree with you, I just wanted to say that I do appreciate your arguments here. I think it is important to push back against sloppy justifications and to force defenders to pick which principles they are arguing under.

So while we disagree on this one, I wanted to say thank you and good work, particularly with the line of argument in this post.

While I agree with the thrust of your post, and your overall position, I vehemently disagree with the Nuremberg example.

Making up laws to try past crimes (however justified) is a travesty of justice. Selectively trying the members of the losing side of the war is a travesty of justice. And kidnapping people in a sovereign country and trying them in your country and executing them (the israelis, south america, etc) is a travesty.

I'm actually surprised you think that the initial invasion of Afghanistan was justified (I'm not saying I agree or disagree, just surprised). We are never going to suppress the Taliban. They are too motivated to stay. Guerilla warfare against an enemy like that always fails and is always costly. The Taliban are not a human rights friendly government, but they are not al Qaeda. They have never been one and the same, the Taliban had no interest in attacking the US, only sovereignty.

Pakistan harbored terrorists. By the same logic we would be justified invading Pakistan. From the very beginning we should have just used surgical strikes and intelligence like we did last week. Take out the al Qaeda leadership. You'll never, ever win against a determined insurgency. We should have narrowed the field. Shot for al Qaeda operatives, not destroying Afghanistan.

The reason these arguments arise is that a terrorist really is a hybrid of soldier and criminal. They have the same goal as an enemy soldier but employ criminal tactics. That's why I think it is appropriate (and legal) to employ a hybrid of military and law enforcement stategies to confront terrorists. Tactics that are illegal in both military and law enforcement contexts (torture, family hostages, etc) should of course remain illegal in fighting terrorism. But tactics that are legal in war but illegal in law enforcement (assasination) should be legal against a terrorist. Call it "heads I win, tails you lose" if you like, but I don't see any other way for a president to proceed without shirking his basic responsibility to defend the state against foreign enemies.

That said, it's certainly not a black and white issue and is definitely worthy of discussion. Bloggers telling Freddie to pipe down aren't doing anyone any favors

Are "enemy soldier" and "criminal" the only possible categories here? It seems to me that this conceptual scheme assumes a world where state coverage is complete: enemy soldiers are agents of rival states whose status as a state (and therefore a legitimate object of loyalty) is taken as valid, while criminals are subject to the laws of whatever state they happen to be hanging out in and enjoy reasonable protections largely designed to make sure punitive action hits the right person. But to historicize a bit, when states were emergent there was a lot of territory, and a lot of people, who were not affiliated with states at all. One might say that the state (defined for the purpose of this post as an agent of violence dominant in a particular area) has been confronting agents of violence who are *not* so confined for as long as states have been around. This is part of what makes international terrorism so threatening, I think, and makes the US response (launching wars against other states) not just wrong but also inappropriate. In some ways, it seems to me that targeted killing is a weirdly sensible response--or at least much less heinous than invasion and occupation.